Markun v. Weckstein

Ordway, J.

This is a summary proceeding for the possession of real property under sections 2233 and 2235 of the Code of Civil Procedure. The petition alleges in substance that the owner of the premises leased them to the petitioners and the defendants jointly, and for their joint use, and that petitioner entered upon and was in actual occupation and possession thereof, and that defendants “ wrongfully and unlawfully and by force and intimidation removed and ejected ” petitioner therefrom and have since continued to and now occupy the same. At the beginning of the trial and before any evidence was given, the learned court dismissed the petition and proceeding “ because the conventional relation of landlord and tenant does not exist between the parties hereto.” In my opinion this was error. The petition states sufficient facts to bring the proceeding within the provisions of the Code of Civil Procedure. Those provisions, while embraced within the title of summary proceedings, which also cover the ordinary landlord and tenant proceedings where of course the conventional relation of landlord and tenant must be shown, afford a separate and distinct remedy, not dependent upon the relationship of landlord and tenant, a remedy given by the legislature for a distinct purpose. That remedy is open to any one who is lawfully entitled to possession of real property and who is put out of it or kept out of it by force. Town of Oyster Bay v. Jacob, 109 App. Div. 612; Lowman v. Sprague, 73 Hun, 408; Potter v. New York Baptist Mission Society, 23 Misc. Rep. 671; New York City Baptist Mission Society v. Potter, 20 id. 191. See, also, Fults v. Monro, 202 N. Y. 34, 39, 43; Becher v. City of New York, 102 App. Div. 269, 271; Pharis v. Gere, 110 N. Y. 336.

Sections 2233 and 2235 of the Code, particularly so far as they authorize the bringing of summary proceedings in case of forcible entry and detainer, are plainly remedial and should be liberally construed. The mere fact that where such a proceeding is brought by one joint tenant against another the warrant of removal issued under section 2251 may be executed simply by removing the offending tenant from exclusive rather than entire possession of the premises does not to my mind compel us to hold that the legislature intended that this useful remedy should be inapplicable in such a case.

The respondent claims that it is necessary to show “ some relation between the parties, either of estate or contract. ” I do not think that this is so, but, even if it were, these parties are alleged to be joint lessees of the same owner under the same lease. The appellant is entitled to have this proceeding disposed of on the merits.

Order and judgment reversed, and new trial ordered, with thirty dollars costs to appellant to abide the event.

Butte, J., concurs.